Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 1 of 45 PageID #: 798

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1 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 1 of 45 PageID #: 798 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK )( RANDY CREDICO, et al., -against- Plaintiffs, NEW YORK STATE BOARD OF ELECTIONS, et al., REPORT AND RECOMMENDATION 10 CV 4555 (RJD) Defendants )( On October 6, 2010, plaintiffs Randy Credico ("Credico"), as candidate of the Libertarian Party ofnew York ("LPNY") and the Anti-Prohibition Party ("APP") for the office of the United States Senator for the State ofnew York, Richard Corey ("Corey"), a New York resident and registered voter, Mark Axinn ("Axinn"), individually and on behalf of the LPNY, and Andrew J. Miller ("Miller"), individually and on behalf of the APP (collectively, "plaintiffs") filed this action against the New York State Board of Elections (the "Board") and against James A. Walsh ("Walsh"), Douglas A. Kellner ("Kellner"), Evelyn J. Aquila ("Aquila") and Gregory P. Peterson ("Peterson") (collectively, "defendants"), in their official capacities as Commissioners of the New York State Board ofelections. 1 Plaintiffs' Complaint ("Compl.") challenges the constitutionality ofnew York State Election Law 7-104(4)(e) ("Section 7-104(4)(e)" or "the 1 Plaintiffs' claims against the Board were dismissed as of October 25, 2010, as barred by the Eleventh Amendment. See McMillan v. New York State Bd. of Elections, No. 12 CV 302, 2012 WL (E.D.N.Y. July 11, 2012). Plaintiffs' claims for prospective relief against the individual Commissioners in their official capacities remain, pursuant to the Ex Parte Young doctrine. See In redeposit Ins. Agency, 482 F.3d 612, 617 (2d Cir. 2007) (citing Edelman v. Jordan, 415 U.S. 651 (1974)). 1

2 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 2 of 45 PageID #: 799 Statute"), which requires that certain candidates for office who have been nominated by more than one independent body appear only once on the ballot. Specifically, plaintiffs claim that Section ( 4 )(e) unconstitutionally burdens their First Amendment rights of association and speech and deprives them of the equal protection of the law guaranteed by the Fourteenth Amendment. (Compl. ~~ 30-39). Plaintiffs seek declaratory judgment and injunctive relief. On December 7, 2012, plaintiffs LPNY and APP filed a motion for summary judgment, and defendants filed a cross-motion for summary judgment. 2 On December 10, 2012, the Honorable Raymond J. Dearie referred both motions to the undersigned to prepare a Report and Recommendation. FACTUAL BACKGROUND A. The Parties New York election law defines political organizations as either "parties" or "independent bodies." N.Y. Elec. Law A "party" is "any political organization which at the last preceding election for governor polled at least fifty thousand votes for its candidate for governor." ld (3); see Schulz v. Williams, 44 F.3d 48, 50 (2d Cir. 1994). An 2 Plaintiffs Axinn and Miller seek summary judgment on behalf of the LPNY and the APP, but not on behalf of plaintiffs Credico and Corey. (Defendants' Statement of Material Facts, dated August 29, 2012 ("Defs.' 56.1 Stmnt") ~ 3; Plaintiffs' Response to Defendants' Statement of Material Facts, dated October 12, 2012 ("Pls.' 56.1 Resp.") ~ 3). In their papers, defendants appear to believe that Mr. Credico and Mr. Corey have abandoned their claims, (Memorandum of Law in Support of Defendants' Cross-Motion for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, dated August 29, 2012 ("Defs.' Mem.") at 7), and they seek to dismiss the Complaint in its entirety. (Id. at 23). Given the Court's uncertainty as to the status of Mr. Credico's and Mr. Corey's claims, which has not been addressed by either the plaintiffs or the defendants, the Court addresses the parties' summary judgment motions only as they relate to the LPNY and the APP. 2

3 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 3 of 45 PageID #: 800 "independent body" is "any organization or group of voters which nominates a candidate or candidates for office to be voted for at an election, and which is not a party..." N.Y. Elec. Law 1-104(12). Parties may place their candidates on the ballot automatically; independent bodies must undertake a special petition drive. Green Party ofnew York State v. New York State Bd. of Elections, 389 F.3d 411, 415 (2d Cir. 2004). The Libertarian Party ofnew York ("LPNY"), chaired by plaintiff Axinn, is considered to be an independent body, not a party. (Defs.' 56.1 Stmnt ~~ 4, 8; Pls.' 56.1 Resp. ~~ 4, 8). The LPNY has ten chapters statewide, four of which are in New York City. (Defs.' 56.1 Stmnt ~ 4; Pls.' Resp. ~ 4). The LPNY operates under a set ofby-laws and endorses statewide candidates at a nominating convention. (Defs.' 56.1 Stmnt ~~ 5, 6; Pls.' Resp. ~~ 5, 6). Once endorsed, LPNY candidates run campaigns independently from the LPNY, and they obtain access to the ballot through an independent petitioning process. (Defs.' 56.1 Stmnt ~ 7; Pls.' 56.1 Resp. ~ 7). Plaintiffs contend that the Anti-Prohibition Party ("APP") is chaired by plaintiff Miller and is also an independent party. 3 (Pls.' 56.1 Stmnt 4 ~~ 3, 4). The APP was started in 2010 by plaintiff Miller and Kristin Davis ("Davis"), who ran for Governor with the endorsement of the APP. (Defs.' 56.1 Stmnt ~~ 12, 13; Pls.' 56.1 Resp. ~~ 12, 13). During 2010, the APP had no website, rules, bylaws, or enrolled members. (Defs.' 56.1 Stmnt ~~ 18-20; Pls.' 56.1 Resp. ~~ 18-20). The parties dispute whether in 2010 the APP had any officers or organization other than 3 Defendants claim that plaintiff Miller is not currently acting as the APP's Chair, because, as is undisputed, Mr. Miller is enrolled as a Libertarian and volunteers for Gary Johnson, the Libertarian candidate for President. (Defs.' 56.1 Stmnt ~ 16; Pls.' 56.1 Resp. ~ 16; Defs.' 56.1 Resp. ~~ 3, 4). 4 Citations to "Pls.' 56.1 Stmnt" refer to Plaintiffs' Statement of Undisputed Material Facts, dated July 9,

4 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 4 of 45 PageID #: 801 Mr. Miller and Ms. Davis. (Defs.' 56.1 Stmnt ~~ 17, 18; Pls.' 56.1 Resp. ~~ 17, 18). It is undisputed that the APP is not currently active. (Defs.' 56.1 Stmnt ~ 22; Pls.' 56.1 Resp. ~ 22). In 2010, plaintiff Credico was endorsed by both the LPNY and the APP as their candidate for Senate, running for the seat held by Charles Schumer. 5 (Defs.' 56.1 Stmnt ~~ 9, 14, 23; Pls.' 56.1 Resp. ~~ 9, 14, 23). Mr. Credico testified that he agreed with the Libertarian Party "on about fifty percent of the issues and a little less with Ms. Davis." (Defs.' 56.1 Stmnt ~ 25; Pls.' 56.1 Resp. ~ 25). Prior to the 2010 election, Mr. Credico had no involvement with the Libertarian Party. (Defs.' 56.1 Stmnt ~ 29; Pls.' 56.1 Resp. ~ 29). He contacted the APP through Roger Stone, who was campaigning for Kristin Davis, but Mr. Credico and Mr. Stone later had a disagreement regarding Ms. Davis' campaign for Governor. (Defs.' 56.1 Stmnt ~~ 32, 33; Pls.' 56.1 Resp. ~~ 32, 33). Ms. Davis did not endorse Mr. Credico, and the parties dispute whether or not she refused to campaign with him. (Defs.' 56.1 Stmnt ~ 34; Pls.' 56.1 Resp. ~ 34). Mr. Credico also sought to run in the Democratic primary for Senate, but he failed to obtain enough signatures. (Defs.' 56.1 Stmnt ~~ 35-37; Pls.' 56.1 Resp. ~~ 35-37). During his campaign, Mr. Credico distributed literature advertising his endorsement by both the LPNY and the APP. (Defs.' 56.1 Stmnt ~ 27; Pls.' 56.1 Resp. ~ 27). Plaintiff Corey is a New York resident, a registered Democrat, and a supporter of Mr. Credico. (Defs.' 56.1 Stmnt ~~ 38, 39; Pls.' 56.1 Resp. ~~ 38, 39). Mr. Credico asked Mr. Corey to become involved in his campaign, but Mr. Corey told Mr. Credico that he would not cast a vote for the LPNY. (Defs.' 56.1 Stmnt ~~ 40, 41; Pls.' 56.1 Resp. ~~ 40, 41). Although Mr. 5 According to the parties, the LPNY and the APP shared common views on some social issues. (Defs.' 56.1 Stmnt ~ 1 0; Pls.' 56.1 Resp. ~ 1 0). 4

5 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 5 of 45 PageID #: 802 Corey never contributed to the APP or had contact with Andrew Miller, Kristen Davis, or anyone else involved with the APP (Defs.' 56.1 Stmnt ~~ 42, 43; Pls.' 56.1 Resp. ~~ 42, 43), Mr. Corey thinks that he cast a vote for Mr. Credico and the APP in the 2010 election. (Defs.' 56.1 Stmnt ~ 44; Pls.' 56.1 Resp. ~ 44). The parties dispute whether "the only thing [Mr. Corey] knows about the APP is that it is against the prohibition of marijuana." (Defs.' 56.1 Stmnt ~ 42; Pls.' 56.1 Resp. ~ 42). It is undisputed that Mr. Credico did not expect to win the election; instead, he ran "to make a point." (Defs.' 56.1 Stmnt ~ 24; Pls.' 56.1 Resp. ~ 24). While plaintiffs admit that Mr. Credico raised no money for his campaign in the summer of and that he petitioned only a couple of days for each of the independent bodies that had nominated him, the parties dispute whether Mr. Credico failed to raise any money for his campaign during the rest of2010 and whether, once nominated, he spent only a couple of days campaigning. (Defs.' 56.1 Stmnt ~ 26; Pls.' 56.1 Resp. ~ 26). The parties also dispute whether the LPNY conducted the petitioning process for Mr. Credico's campaign. (Defs.' 56.1 Stmnt ~ 31; Pls.' 56.1 Resp. ~ 31). B. The Ballot In New York State, there is a "full face" ballot requirement that all candidates for all offices appear on a single page. (Defs.' 56.1 Stmnt ~ 47; Pls.' 56.1 Resp. ~ 47). The ballot is fixed at ten rows. (Defs.' 56.1 Stmnt ~~ 48, 49; Pls.' 56.1 Resp. ~~ 48, 49). Each party has its own row; one row must be reserved for voters to write in the names of candidates not already on the ballot; and the remaining rows are allocated to independent bodies whose candidates obtain a minimum number of signatures, depending on the office for which the candidates are 5

6 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 6 of 45 PageID #: 803 nominated. 6 (Defs.' 56.1 Stmnt ~~ 48, 49; Pls.' 56.1 Resp. ~~ 48, 49). See N.Y. Elec. Law 6-136, On the ballot, independent bodies appear in rows below the rows reserved for parties. (Defs.' 56.1 Stmnt ~ 53; Pls.' 56.1 Resp. ~ 53). Whether an independent body has its own row depends on how many independent bodies are running candidates and how many times the same person is nominated by more than one independent body. (Defs.' 56.1 Stmnt ~ 56; Pls.' 56.1 Resp. ~ 56). When there is not enough space for each independent body to appear on its own row, the names of two independent bodies appear on separate lines within a single row, which is called "wrapping." (Defs.' 56.1 Stmnt ~57; Pls.' 56.1 Resp. ~57). The order in which independent bodies appear on the ballot is determined by lottery. (Defs.' 56.1 Stmnt ~54; Pls.' 56.1 Resp. ~54). Candidates may be endorsed by multiple parties or independent bodies. This lawsuit concerns a particular requirement regarding the ballot placement of candidates endorsed by two or more independent bodies. The relevant section of the New York Election Law at issue reads as follows: If any person is nominated for any office only by more than one independent bodies [sic], his or her name shall appear but once upon the machine in one such row or column to be designated by the candidate in a writing filed with the officer or board charged with the duty of providing ballots, or if the candidate shall fail to so designate, in the place designated by the officer or board charged with the duty of providing ballots, and in connection with his or her name there shall appear the name of each independent body nominating him or her, but, where the capacity of the machine will permit, the name of such person shall not appear or be placed in a 6 All counties in New York State, other than the counties in New York City, use a "landscape form" ballot with ten rows. (Defs.' 56.1 Stmnt ~ 49). 6

7 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 7 of 45 PageID #: 804 column or on a horizontal line with the names of persons nominated by a party for other offices. N.Y. Elec. Law 7-104(4)(e). Thus, under the Statute, the name of a candidate who has been nominated by two or more independent bodies may appear only one time on one line, and the emblems of the other independent bodies who also nominated that candidate appear above the candidate's name. (Defs.' 56.1 Stmnt 1 58; Pis.' 56.1 Resp. 1 58). Candidates may choose the line on which their name appears, and if they do not make that selection, the Board decides for them. (Defs.' 56.1 Stmnt 1 59; Pis.' 56.1 Resp. 1 59). In contrast, the name of a candidate who has been nominated by two or more parties must appear on the rows for each nominating party. N.Y. Elec. Law ( 4)(b ). The Board does not create or provide ballots, but it certifies to all county boards of elections the names of the candidates who are to appear on the ballot, and it prepares sample ballots to assist the county boards in designing their ballots. (Defs.' 56.1 Stmnt 11 50, 51, 62; Pis.' 56.1 Resp , 51, 62). The Commissioners of the Board are without authority to alter the statutory scheme that governs the placement of candidates' names on the ballot. (Defs.' 56.1 Stmnt 11 45, 46; Pis.' 56.1 Resp , 46). In the 2010 statewide election, both the LPNY and the APP endorsed candidates for other political offices on the 2010 ballot in addition to endorsing Mr. Credico. 7 (Pls.' 56.1 Stmnt 11 7 Plaintiffs assert that the LPNY and the APP "qualified" other candidates for the 2010 ballot. (Pls.' 56.1 Stmnt 11 11, 12). Defendants dispute plaintiffs' contention "insofar as the term 'qualified' is vague and ambiguous," but defendants do not specifically deny that candidates other than Mr. Credico were endorsed by the LPNY and the APP on the 2010 ballot. (Defs.' 56.1 Resp , 12). 7

8 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 8 of 45 PageID #: , 12). Due to the number of independent bodies that nominated candidates that year, the ballot had to be wrapped so that two independent bodies were listed in each of the last two rows of the ballot. (Defs.' 56.1 Stmnt ~ 63; Pls.' 56.1 Resp. ~ 63). The LPNY shared a row with the Freedom Party and the APP shared a row with the Taxpayers Party. (Defs.' 56.1 Stmnt ~~ 64, 65; Pls.' 56.1 Resp. ~~ 64, 65). On September 17, 2010, the Board of Elections notified Mr. Credico that, because he had been nominated by two independent bodies, his name could appear on only one organization's line on the ballot. (Pls.' 56.1 Stmnt ~ 13; Defs.' 56.1 Resp. ~ 13; Compl., Ex. 1 8 ). Mr. Credico refused to designate whether he preferred to appear on the LPNY's line or on the APP's line. Instead, he requested that he be placed on both lines and advised the Board that he would bring legal action if the Board did not fulfill his request. (Defs.' 56.1 Stmnt ~~ 69, 70; Pls.' 56.1 Resp. ~~ 69, 70). Pursuant to the statute, the Board made the decision and placed Mr. Credico's name on the LPNY's line, with the APP's emblem above Mr. Credico's name. (Defs.' 56.1 Stmnt ~ 71; Pls.' 56.1 Resp. ~ 71). Mr. Credico's name did not appear on the APP's line; although APP candidates nominated for other offices appeared on the APP line, the space for United States Senate was left blank. In contrast, Senate candidate Joseph DioGuardi, who was nominated by two parties - the Republican and Conservative parties - and by one independent body -the Taxpayer Party- appeared in both the Republican and Conservative Party's rows, with the Taxpayer Party's emblem included above Mr. DioGuardi's name on the Conservative Party row. 8 Citations to "Compl." refer to plaintiffs' Complaint, filed October 6, Citations to "Compl., Ex. 1" refer to the letter from the New York State Board of Elections to Randy A. Credico, dated September 17,

9 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 9 of 45 PageID #: 806 (Defs.' 56.1 Stmnt ~ 66; Pls.' 56.1 Resp. ~ 66). On October 6, 2010, plaintiffs filed their Complaint in this action, alleging that Section 7-104( 4 )(e) violates their First Amendment rights of association and speech, and their right to equal protection under the Fourteenth Amendment by discriminating against independent bodies and burdening their access to the ballot. (Defs.' 56.1 Stmnt ~ 2; Pls.' 56.1 Resp. ~ 2). On that same day, plaintiffs moved for a preliminary injunction to enjoin the enforcement of Section 7-104(4)(e) in the November 2, 2010 New York State general election. On October 25, 2010, Judge Dearie granted plaintiffs' motion for a preliminary injunction, finding that plaintiffs had demonstrated "a clear or substantial likelihood of establishing that the burdens imposed on their important First Amendment and Fourteenth Amendment rights of political affiliation outweigh New York's asserted interest in enforcing" Section 7-104(4)(e). (Ord. 9 at 10). Accordingly, Judge Dearie directed defendants to certify the ballot in the November 2, 2010 general election so that Mr. Credico's name would be placed on the ballot lines for both the LPNY and the APP. On October 27, 2010, after defendants came forward with sufficient evidence to show that compliance with the injunction was not possible so close to the election, Judge Dearie vacated his October 25, 2010 Order to the extent that it enjoined defendants from enforcing Section 7-104(4)(e). Mr. Credico received 24,871 votes in the 2010 election, out of more than four million votes cast. (Defs.' 56.1 Stmnt ~~ 28, 72; Pls.' 56.1 Resp. ~~ 28, 72). In moving for summary judgment, plaintiffs seek declaratory relief and a permanent 9 Citations to "Ord." refer to the version of Judge Dearie's October 25, 2010 Order as amended on October 28,

10 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 10 of 45 PageID #: 807 injunction only insofar as 7-104(4)(e) applies to the LPNY and the APP and their candidates for elections in which either party is also running other candidates. (Pls.' Mem. 10 at 6). DISCUSSION I. Summary Judgment Legal Standard It is well-settled that a party moving for summary judgment has the burden of establishing that no genuine issue of material fact is in dispute and that the moving party is entitled to judgment as a matter oflaw. See Fed. R. Civ. P. 56( a); Anderson v. Liberty Lobby. Inc., 477 U.S. 242,256 (1986); New York Marine & Gen. Ins. Co. v. Lafarge N. Am.. Inc., 599 F.3d 102, 114 (2d Cir. 2010). Since summary judgment is an extreme remedy, cutting off the rights ofthe non-moving party to present a case to the jury, see Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752,754 (2d Cir. 1976); Gibralter v. City ofnew York, 612 F. Supp. 125, (E.D.N.Y. 1985) (stating that "[s]ummary judgment is a drastic remedy and should be applied sparingly"), the Court should not grant summary judgment unless "it is quite clear what the truth is [and] that no genuine issue remains for trial." Auletta v. Tully, 576 F. Supp. 191, 195 (N.D.N.Y. 1983) (internal quotation marks and citations omitted), affd, 732 F.2d 142 (2d Cir. 1984). In addition, "'the inferences to be drawn from the underlying facts... must be viewed in the light most favorable to the party opposing the motion."' Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, (1986) (quoting United States v. Diebold. Inc., 369 U.S. 654, 655 (1962)); Wachovia Bank, Nat. Ass'n v. VCG Special Opportunities Master Fund. 10 Citations to "Pls.' Mem." refer to the Memorandum of Law in Support of Plaintiffs' Motion for Summary Judgment, dated July 9,

11 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 11 of 45 PageID #: 808 Ltd., 661 F.3d 164, 171 (2d Cir. 2011), cert. denied, 132 S.Ct. 2439,- U.S.- (2012). Once the moving party discharges its burden of proof, the party opposing summary judgment has the burden of setting forth "specific facts showing that there is a genuine issue for trial," wherein "a reasonable jury could return a verdict for the non-moving party." International Bus. Machines Corp. v. BGC Partners. Inc., No. 10 CV 128,2013 WL , at *4 (S.D.N.Y. Apr. 25, 2013) (quoting Anderson v. Liberty Lobby. Inc., 477 U.S. at 248). A party opposing a properly supported motion for summary judgment "may not rest upon the mere allegations or denials of his pleading." Anderson v. Liberty Lobby. Inc., 477 U.S. at 248. Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at (emphasis in original). Federal Rule of Civil Procedure 56 provides that, in moving for summary judgment or responding to such a motion, "[a] party asserting that a fact cannot be or is genuinely disputed must support the assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1). While the Court need consider only the materials cited by the parties, it may consider any other materials in the record in deciding a motion for summary judgment. Fed. R. Civ. P. 56(c)(3). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4). Rule 56's requirement that affidavits be made on personal knowledge is not satisfied by assertions made 11

12 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 12 of 45 PageID #: 809 "on information and belief." Patterson v. County of Oneida. N.Y., 375 F.3d 206, 219 (2d Cir. 2004) (citing Sellers v. M.C. Floor Crafters. Inc., 842 F.2d 639,643 (2d Cir. 1988)). "However, a verified pleading, to the extent that it makes allegations on the basis of the plaintiffs personal knowledge, and not merely on information and belief, has the effect of an affidavit and may be relied on to oppose summary judgment." Id. (citing Fitzgerald v. Henderson, 251 F.3d 345, 361 (2d Cir. 2001), cert. denied, 536 U.S. 922 (2002)). II. Subject Matter Jurisdiction Although the parties have filed cross motions, the Court first considers defendants' summary judgment motion because it raises a question of subject matter jurisdiction, without which the Court may not proceed to consider the merits of plaintiffs' claim. Defendants argue that plaintiffs' claims are not justiciable. (Defs.' Mem. at 11). Specifically, defendants claim that plaintiffs lack standing to assert their claims and that plaintiffs' claims are moot. A. Standing 1. Legal Standard The plaintiffs have the burden of establishing that they have standing to pursue their claims. Marcavage v. City ofnew York, 689 F.3d 98, 103 (2d Cir. 2012) (citing Raines v. Byrd, 521 U.S. 811 (1997)), cert. denied, 133 S. Ct (2013); see also Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). "A plaintiffs burden to demonstrate standing increases over the course of litigation," such that "each element of standing must be supported in the same way as any other matter on which the plaintiffbears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Cacchillo v. Insmed, Inc., 12

13 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 13 of 45 PageID #: F.3d 401, 404 (2d Cir. 2011) (citing Lujan v. Defenders ofwildlife, 504 U.S. at 561). Thus, in response to a summary judgment motion, a plaintiff "can no longer rest on such 'mere allegations,' but must 'set forth' by affidavit or other evidence 'specific facts,' Fed. R. Civ. P. 56( e), which for purposes of the summary judgment motion will be taken to be true." Lujan v. Defenders ofwildlife, 504 U.S. at 561. Under Article III of the Constitution, plaintiffs are required to establish standing to sue for damages in federal court by showing: 1) that they "suffered an injury in fact that is concrete and not conjectural or hypothetical;" 11 2) that "the injury is fairly traceable to the actions of the defendant;" and 3) that "the injury will be redressed by a favorable decision." Marcavage v. City ofnew York, 689 F.3d at 103 (citing Lujan v. Defenders, 504 U.S. at ) (finding that plaintiffs had standing to seek damages where they claimed they had been arrested for protesting in an area where demonstrating was prohibited during the 2004 Republican National Convention ("RNC")). Since the plaintiffs seek equitable or "prospective" relief, they must show an additional element: "a sufficient likelihood that [they] will again be wronged in a similar way." City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983). "That is, a plaintiff must demonstrate a 'certainly impending' future injury." Marcavage v. City ofnew York, 689 F.3d at 103 (citing Whitmore v. Arkansas, 495 U.S. 149, 158 (1990)) (finding that, where plaintiffs were arrested for protesting at the RNC, plaintiffs did not have standing to seek equitable relief because no future national convention was scheduled to be held in New York and they had not shown that 11 The Second Circuit has recently observed that the first element ofthe constitutional standing doctrine is logically equivalent to the ripeness doctrine. National Org. For Marriage v. Walsh, No. 10 CV 4572, 2013 WL , at *3 (2d Cir. Apr. 22, 2013) (finding that "to say a plaintiffs claim is constitutionally unripe is to say the plaintiffs claimed injury, if any, is not 'actual or imminent,' but instead 'conjectural or hypothetical'"). 13

14 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 14 of 45 PageID #: 811 similar policies would be enacted even if one were to be held). Where a plaintiff alleges violations of his or her equal protection rights, '"the injury in fact' is the denial of equal treatment resulting from the imposition of the barrier, not the ultimate inability to obtain the benefit." Able v. United States, 88 F.3d 1280, 1291 (2d Cir. 1996) (quoting Northeastern Florida Chapter of Associated Gen. Contractors v. City of Jacksonville. 508 U.S. 656, 666 (1993)). The Second Circuit has clarified that standing in an equal protection case is established where (1) there exists a reasonable likelihood that the plaintiff is in a disadvantaged group, (2) there exists a government-erected barrier, and (3) the barrier causes members of one group to be treated differently from members of the other group." Id. (quoting Comer v. Cisneros. 37 F.3d 775, 793 (2d Cir. 1994)). In the context of alleged First Amendment violations, "it is uncontroversial to state that an alleged deprivation of First Amendment rights alone may suffice to constitute an injury in fact." New York Civil Liberties Union v. New York City Transit Auth., 675 F. Supp. 2d 411, (S.D.N.Y. 2009) (citing American Booksellers Found. v. Dean, 342 F.3d 96, 101 (2d Cir. 2003)), affd, 684 F.3d 286 (2d Cir. 2012); see also Rowe v. Shake, 196 F.3d 778, 781 (7th Cir. 1999) (holding that a "deprivation of First Amendment rights standing alone is a cognizable injury"). However, allegations of a "subjective chill" of free speech rights is insufficient to satisfy the injury-in-fact requirement of the standing doctrine. Id. at 427. "Rather, a plaintiff must demonstrate some specific present or future objective harm that the challenged regulation has inflicted by deterring him from engaging in protected activity." Id. (citing Brooklyn Legal Servs. Com. v. Legal Servs. Com., 462 F.3d 219,226 (2d Cir. 2006), overruled on other grounds, Bond v. United States, 131 S. Ct. 2355, 2361 (2011)). 14

15 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 15 of 45 PageID #: Analysis Defendants claim that plaintiffs have failed to "adduce any evidence of injury" sufficient to fulfill the first prong ofthe standing doctrine. (Defs.' Mem. at 15). Defendants characterize plaintiffs' claimed injury as harm to "their associational rights based on a theory that the statute interferes with their ability to 'mark' their candidates with 'their seal of approval."' (.I4:. (quoting Pls.' Mem. at 27)). According to defendants, plaintiffs have not provided evidence to support this theory or to show that they suffered any injury in connection with the 2010 election or will suffer injury in any future election. (Id. at 15). In support of these claims, defendants contend that Mr. Credico had no allegiance to the LPNY or the APP when he ran for Senate in 2010, but instead ran only to increase his own visibility and to "make a statement" against Senator Schumer. (Id. at 16). Defendants also claim that Mr. Corey had no allegiance to either the LPNY or the APP. (Id. at 15). Finally, defendants argue that Section 7-104(4)(e) did not prevent Mr. Credico from "educating the electorate about his [] cross-designation," nor did it prevent the LPNY and the APP from "endorsing its candidate or campaigning on his or her behalf." (Id. at 19). Defendants urge the Court to conclude that there was no "genuine attempt to 'mark' a candidate in the election" by the LPNY or the APP, and that, therefore, "any claim that the LPNY or the APP would experience an abridgement of their constitutional rights based on the purported inability to 'mark' a future candidate, is illusory, at best." (Id.) Plaintiffs assert that their injury is concrete, particularized, and actual or imminent. (Pls.' Mem. at 10). See New York Civil Liberties Union v. New York City Transit Auth., 675 F. Supp. 2d at 424 (defining an "injury in fact," as "an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical"). First, 15

16 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 16 of 45 PageID #: 813 plaintiffs claim that their injury is concrete because they allege that their associational, free speech, and equal protection rights have been violated and because their opportunities for coordination with other independent bodies is impaired. (Id.) Second, plaintiffs contend that their injury is particularized, since Section 7-104(4)(e) only affects independent bodies, not parties. Third, plaintiffs' injury is allegedly actual or imminent in that they are constantly seeking potential candidates for future elections, and their ability to do so is impaired by the uncertainty of whether Section ( 4 )(e) will be enforced. (I d.) With respect to plaintiffs' claim that Section 7-104(4)(e) violates their equal protection rights, the Court finds that plaintiffs have demonstrated a concrete injury. See Able v. United States, 88 F.3d at First, the plaintiffs are independent bodies rather than parties, and thus members of the allegedly disadvantaged group. Second, because Section 7-104(4)(e) states that a candidate for office who is nominated by more than one independent body may appear only once on the ballot, there is a government-imposed barrier to endorsements by independent bodies. Finally, the Statute, on its face, treats independent bodies and parties differently when they crossendorse candidates for office. See Conservative Party ex rel. Long v. Walsh, 818 F. Supp. 2d 670,673 (S.D.N.Y. 2011) (citing Rockefeller v. Powers. 74 F.3d 1367, (2d Cir. 1995), cert. denied, 517 U.S (1996)) (finding that the '"injury in fact"' in an equal protection case is the denial of equal treatment resulting from the imposition of a barrier, not the ultimate ability to obtain benefits if that barrier is eliminated"). All of these facts are undisputed by defendants. (Defs.' 56.1 Resp. ~~ 1, 3; Defs.' 56.1 Stmnt ~~ 1, 66). With respect to plaintiffs' First Amendment claims, plaintiffs have not relied on mere allegations of a "subjective chill," but instead have shown specific and objective harm caused by 16

17 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 17 of 45 PageID #: 814 the enforcement of the statute. Plaintiffs' allegation that the enforcement of Section ( 4 )(e) violates their associational and free speech rights by itself "may suffice to constitute an injury in fact." New York Civil Liberties Union v. New York City Transit Auth., 675 F. Supp. 2d at While standing has been found in election law cases where the litigants had not yet invoked the challenged election law nor had they expressed any intention of doing so in the future, see Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289, 301 (1979), the present case is not a pre-enforcement challenge; it is undisputed that Section ( 4 )(e) has already been enforced against the plaintiffs. (Defs.' 56.1 Stmnt ~~ ). Where a plaintiff "is himself an object of the [government action] at issue," "there is ordinarily little question that the action... has caused him injury." Brooklyn Legal.Services Co:r:p. v. Legal Services Co:r:p., 462 F.3d at 227 (citing Lujan v. Defenders ofwildlife, 504 U.S. at ); see also Lerman v. Bd. ofelections in City ofnew York, 232 F.3d 135, 152 (2d Cir. 2000), cert. denied, 533 U.S. 915 (2001). Moreover, the LPNY has asserted that the enforcement of Section 7-104(4)(e) has caused it further harm and will continue to do so in the future. Specifically, the LPNY alleges that (1) its opportunities for coordination with other independent bodies is reduced, which impacts the extent of its ability to publicize the issues important to the LPNY and its supporters; (2) the LPNY intends to cross-endorse candidates for office with other independent bodies again in the future, and it anticipates disagreement as to which line such a candidate would appear on; and (3) the supporters of either the LPNY or an independent body with whom it coordinates will observe at least one blank space on the ballot, which will have a demoralizing effect on the LPNY and its 17

18 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 18 of 45 PageID #: 815 members. (Axinn Ver. 12 ~ 5). 13 It is not necessary for the purpose of establishing standing that plaintiffs show that Mr. Credico might have won the election or achieved a specific number of additional votes if not for the enforcement of Section 7-104(4)(e). See Fulani v. League of Women Voters Educ. Fund, 882 F.2d 621,627 (2d Cir. 1989) (finding that the plaintiffs injury did "not derive solely from 12 Citations to "Axinn Ver." refer to the Verification in Support of Plaintiffs' Motion for Summary Judgment by Mark Axinn, dated August 18,2011. Defendants complain that the Axinn Verification fails to comply with Rule 56's requirement that affidavits or declarations submitted in connection with a motion for summary judgment by made on personal knowledge, because the Axinn Verification makes certain statements regarding the APP on information and belief. (Defs.' Mem. at 1 0). On this basis, defendants urge the Court to strike the Axinn Verification and deny plaintiffs' motion for summary judgment. (Id.) Although Rule 56 requires affidavits or declarations to be made on personal knowledge, Patterson v. County of Oneida, N.Y., 375 F.3d at 219, the Court need not strike entirely an affidavit that fails to comply with Rule 56. The Court may instead "simply decline to consider those aspects of a supporting affidavit that do not appear to be based on personal knowledge or are otherwise inadmissible." Doe v. Nat'l Bd. of Podiatric Med. Examiners, No. 03 CV 4034, 2004 WL , *4 (S.D.N.Y. Apr. 29, 2004) (citing United States v. Private Sanitation Industry Ass'n of Nassau/Suffolk. Inc., 44 F.3d 1082, 1084 (2d Cir. 1995)). Accordingly, the Court has disregarded those portions of the Axinn Verification made on information and belief. 13 Although defendants argued at oral argument that plaintiffs must show, through empirical evidence, that they would have received a greater number of votes if not for enforcement of the Statute in order to establish standing (Transcript of Civil Cause for Oral Argument Before the Undersigned on December 20, 2012 ("Tr.") at 30), the Court is unpersuaded. Defendants cite two cases, Sangmeister v. Woodard, 565 F.2d 460 (7th Cir. 1977) and New Alliance Party v. New York State Bd. ofelections, 861 F. Supp. 282 (S.D.N.Y. 1994), neither ofwhich deal with the question of standing. Moreover, in the cases cited by defendants, the plaintiffs' claims appear to have been "premised on... position advantage," New Alliance Party v. New York State Bd. of Elections, 861 F. Supp. at 285, whereas in the present case, plaintiffs have not characterized their injury as the loss of votes that may have resulted from their position on the ballot. Further, to the extent that defendants argue that plaintiffs must present empirical evidence demonstrating any other injuries, Rule 56 requires only that plaintiffs "'set forth' by affidavit or other evidence "specific facts," which for purposes of the summary judgment motion will be taken to be true." Lujan v. Defenders of Wildlife, 504 U.S. at 561. The portions of the Axinn Verification which refer to the injury suffered by the LPNY satisfy this standard. 18

19 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 19 of 45 PageID #: 816 the fact that she ultimately failed to win the presidency in Rather, the asserted harm also flow[ed]... from the... restriction ofher opportunities to communicate her political ideas to the voting public at large). Indeed, the First Amendment "most certainly protects political advocacy of this type, and infringements of these rights can occur regardless of the success or failure of a particular candidate at the polls." Fulani v. League of Women Voters Educ. Fund, 882 F.2d at 627 (quoting Common Cause v. Bolger, 512 F. Supp. 26, 32 (D.D.C. 1980)). While defendants argue that Section ( 4 )(e) did not prevent the LPNY or the APP from using channels other than the ballot to educate voters about Mr. Credico's dual nomination for the office of United States Senate, plaintiffs have asserted that their ability to collaborate with other independent bodies and to communicate with and educate voters is impaired by the Statute's limitations on the ballot placement of their candidates. (Axinn Ver. ~ 5). '"We have consistently refused to overlook an unconstitutional restriction upon some First Amendment activity simply because it leaves other First Amendment activity unimpaired."' Lerman v. Bd. of Elections in City ofnew York, 232 F.3d at 152 (quoting California Democratic Party v. Jones, 530 U.S. 567 (2000)). See also Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 591 (6th Cir. 2006) (citing California Democratic Party v. Jones, 530 U.S. at 581) (finding that "a statute affecting key First Amendment rights does not become less burdensome because it does not limit all associational rights"). Thus, defendants' assertion that certain channels of communication available to the plaintiffs remained open despite the enforcement of Section ( 4 )(e) does not establish that the plaintiffs lack standing. Although defendants urge the Court to consider whether Mr. Credico holds any allegiance to the LPNY or the APP, they have cited no case law showing that Mr. Credico's motivation for 19

20 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 20 of 45 PageID #: 817 running for office has any bearing at all on the plaintiffs' standing to bring their claims. Indeed, the Second Circuit has recognized that the purpose of campaigns is not only to elect candidates, but also to "educate the public, to advance unpopular ideas, and to protest the political order, even if the particular candidate has little hope of election." Fulani v. League of Women Voters Educ. Fund, 882 F.2d at 627 (quoting Common Cause v. Bolger, 512 F. Supp. at 32). Therefore, defendants' claim that Mr. Credico ran only to "make a statement" is not sufficient to defeat plaintiffs' standing in this case. Since the plaintiffs seek only prospective relief in this case, to establish standing, they must demonstrate a sufficient likelihood that they will again be wronged in a similar way. While the undisputed facts support a finding that both the APP and the LPNY have suffered a past injury based on the alleged violations of their Equal Protection and First Amendment rights, nowhere in the record has the APP asserted that it will again seek to exercise the rights that it alleges have been curtailed by the enforcement of Section 7-104(4)(e). Moreover, it is undisputed that the APP is not currently active and that it has no website, members, or formal organization. (Defs.' 56.1 Stmnt ~ 22; Pls.' 56.1 Resp. ~ 22). Accordingly, the Court finds that the APP has not fulfilled its burden of showing a "certainly impending" future injury, Marcavage v. City of New York, 689 F.3d at 103, which is necessary for the Court to grant the prospective relief sought by plaintiffs in this case. Since there is no genuine issue of material fact in dispute as to the APP's standing to seek prospective relief, it is respectfully recommended that summary judgment be granted in favor of the defendants dismissing the APP's claims. The LPNY, however, has satisfied its burden of establishing standing in this case, and the Court proceeds to consider whether its claims are moot 20

21 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 21 of 45 PageID #: 818 due to the passage ofthe 2010 election. B. Mootness Although the LPNY has sufficiently established that it has standing to pursue its claims, defendants argue that the claims are nevertheless moot and should be dismissed. 1. Legal Standard "[W]hen the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome," a case becomes moot and the Court lacks jurisdiction. Freedom Party ofnew York v. New York State Bd. of Elections, 77 F.3d 660, 662 (2d Cir. 1996) (quoting New York City Employees' Retirement Sys. v. Dole Food Co., 969 F.2d 1430, 1433 (2d Cir. 1992)). To avoid becoming moot, "[t]he controversy must exist at every stage of the proceeding, including the appellate stage." Freedom Party ofnew York v. New York State Bd. ofelections, 77 F.3d at 662 (quoting Jefferson v. Abrams, 747 F.2d 94, 96 (2d Cir. 1984)). Courts have recognized an exception to the mootness doctrine where the wrongs are "capable of repetition, yet evading review." Members For a Better Union v. Bevona, 152 F.3d 58, 61 (2d Cir. 1998) (quoting Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911)). This exception applies when (1) the challenged action is too short in duration to be fully litigated prior to its cessation or expiration, and (2) there is a reasonable expectation or a demonstrated probability that the controversy will recur. United States v. Quattrone, 402 F.3d 304, 309 (2d Cir. 2005) (citing Press-Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1, 6 (1986)). "The heavy burden ofpersuading the court that the challenged conduct cannot reasonably be expected to start up again lies with the 21

22 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 22 of 45 PageID #: 819 party asserting mootness." Friends of the Earth, Inc. v. Laidlaw Envtl. Services CTOC), Inc., 528 u.s. 167, 189 (2000). The Supreme Court has recognized that the passage of an election does not necessarily render an election law case moot because such controversies may be "capable of repetition, yet evading review." See Storer v. Brown. 415 U.S. 724, 737 (1974). In the context oflegal disputes involving election laws, the first prong of the "capable of repetition, yet evading review" standard - that the challenged action is too short in duration to be fully litigated - is almost always met. See VanWie v. Pataki, 267 F.3d 109, 114 (2d Cir. 2001) (holding that "there is no serious dispute that the first requirement is met" in a case challenging a state statute governing timely enrollment in a political party); see also Meyer v. Grant, 486 U.S. 414, n.2 (1988) (holding that a challenge to ballot access provision is a controversy capable of repetition yet evading review); Libertarian Party of Ohio v. Blackwell, 462 F.3d at 584 (citing Moore v. Ogilvie, 394 U.S. 814, 816 (1969)) (finding that "[l]egal disputes involving election laws almost always take more time to resolve than the election cycle permits"). With respect to the second prong of the test, it is not necessary that a recurrence of the dispute is more probable than not, but only that there is a reasonable expectation or a demonstrated probability of reoccurrence. See Honig v. Doe, 484 U.S. 305, n.6 (1988) (noting that the Supreme Court has found controversies capable of repetition based on expectations that, while reasonable, were hardly demonstrably probable in numerous cases). However, more than "mere speculation" is required to show that the dispute will recur. Van Allen v. Cuomo, 621 F.3d 244, 247 (2d Cir. 2010) (citing VanWie v. Pataki, 267 F.3d at 115). The requirement that the dispute may recur is only satisfied if the "same complaining party would encounter the 22

23 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 23 of 45 PageID #: 820 challenged action in the future." VanWie v. Pataki, 267 F.3d at (emphasis in the original) (finding, in a challenge to a law governing political party enrollment, that the dispute was not reasonably likely to recur and thus moot where plaintiffs had not asserted that they would again attempt to enroll in a political party for the purpose of voting in a primary election); Video Tutorial Services. Inc. v. MCI Telecommunications Corp., 79 F.3d 3, 6 (2d Cir. 1996). "Since the issues presented in this case 'will persist in future elections and within a time frame too short to allow resolution through litigation,' the New York City Board's mootness argument necessarily fails." Lerman v. Bd. of Elections, 232 F.3d at 141 (quoting Fulani v. League of Women Voters Educ. Fund, 882 F.2d at 628) (holding that New York State's residence requirement for witnesses to ballot petition severely burdens speech and association rights without advancing legitimate state interest). 2. Analysis Defendants argue that plaintiffs' claims concerning the enforcement of ( 4 )(e) in connection with Mr. Credico's candidacy in the 2010 election are moot because the election is over and Mr. Credico was unsuccessful. (Defs.' Mem. at 13). According to defendants, plaintiffs' claims fail to satisfy either prong ofthe "capable of repetition, yet evading review" exception to the mootness doctrine. With respect to the first prong requiring that the dispute be short in duration such that it evades review, defendants contend that "plaintiffs are fully aware of the statute they challenge and thus are able to bring a timely challenge to it were they faced with a similar circumstance." (Id. at (citing Freedom Party ofnew York v. New York State Bd. of Elections, 77 F.3d at 662)). Second, defendants contend that plaintiffs cannot satisfy the second prong of the mootness exception because plaintiffs cannot show "that the composition of 23

24 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 24 of 45 PageID #: 821 a future ballot will be substantially similar" since the APP is currently inactive. (Id. at 14). In other words, defendants claim that plaintiffs' claims are not capable of repetition because it is purely speculative that the APP and the LPNY will cross-endorse the same candidate as each other in a future election. In response, plaintiffs contend that their claims are not moot, and that even if the Court finds that LPNY' s claims are moot, the "capable of repetition, but evading review" exception applies. With respect to the first prong of the test, plaintiffs argue that the "inherently brief duration of an election is almost invariably too short to enable full litigation [of election law cases] on the merits." (Pls.' Mem. at 11 (citing Wolfson v. Brammer, 616 F.3d 1045 (9th Cir. 2010)). Plaintiffs note that it was impossible for the present case to be fully litigated before the election and that the preliminary injunction granted by Judge Dearie had to be vacated because there was insufficient time to implement Judge Dearie's Order. (Id. at 12). Second, plaintiffs contend that the dispute at issue in this case is likely to recur. Plaintiffs clarify that they seek relief for those cases in which either the LPNY or the APP endorses the same candidate as any other independent body, not only for cases in which the LPNY and the APP both endorse the same candidate as each other. (Id. at 11-12). According to plaintiffs, it is very likely that the LPNY and the APP will be subject to the same action again because defendants "have given every indication they will continue to enforce [Section] 7-104(4)(e)." (Id.) The Court finds that the LPNY's claims easily satisfy the standard for the "capable of repetition, yet evading review" exception to the mootness doctrine. First, this case is a perfect example of a dispute that cannot be fully litigated prior to its cessation or expiration. Mr. Credico was notified that defendants intended to enforce Section ( 4 )(e) against him on 24

25 Case 1:10-cv RJD-CLP Document 91 Filed 06/19/13 Page 25 of 45 PageID #: 822 September 17, 2010 (see Compl., Ex. 1), and plaintiffs commenced this action on October 6, 2010, less than three weeks later. 14 Although Judge Dearie ruled in plaintiffs' favor on their motion for a preliminary injunction on October 25, 2010, the Judge vacated his Order to the extent that it enjoined defendants from enforcing Section 7-104(4)(e) once defendants came forward with evidence showing that compliance with the injunction was not possible so close to the election. At that time, defendants would have had to reconfigure the ballot, re-print copies, and redistribute the new ballots to the polling places, all within one week ofthe November 2, 2010 election. (Defs.' 10/25/10 LetY 1-2) Thus, it is abundantly clear that plaintiffs' claims have evaded review due to the short duration between the initiation of the dispute and the election. See Libertarian Party ofnew Hampshire v. Gardner, 638 F.3d 6, (1st Cir.) (finding that the plaintiffs' claims evaded review where the plaintiffs had four months from the time they qualified to be listed on the ballot until the date of the election, and less time until the date on which the ballot was printed), cert. denied, 132 S. Ct. 402 (2011). The case cited by defendants, Freedom Party ofnew York v. New York State Board of Elections, 77 F.3d 660, is distinguishable. In that case, a political organization called the 14 At oral argument, defendants suggested that the plaintiffs could bring a future action "earlier" because once they "have filed petitions... they know that [notification of the enforcement of Section ( 4 )(e)] is coming." (Tr. at 24 ). The Court notes that if plaintiffs were to have filed their Complaint much earlier, they may have exposed themselves to a jurisdictional challenge of the basis of ripeness. Moreover, the Court is unconvinced that there would be sufficient time for plaintiffs' case to be fully litigated if they were to initiate suit after filing a nominating petition, which defendants' counsel noted are finalized in August. (Id.) 15 Citations to "Defs.' 10/25/10 Let." refer to the letter from defendants to the Court seeking to vacate the preliminary injunction order issued by Judge Dearie, dated October 25,